Friday, November 04, 2005

Target has a new pharmaceutical policy: They stock emergency contraception (EC), but pharmacists who object to EC on religious grounds can refuse to sell it to you. And they won’t lose their jobs for, y’know, not doing their jobs.

America Blog and Dan Savage blast Target for inserting “red state” politics into their store policies. America Blog says Target is falsely reinterpreting the Civil Rights Act of 1964, and Savage even dubs this an issue “straight rights” and urges heteros to stand up and defend themselves.

They’re wrong. Or rather, they’re right, but they’re blaming the wrong institution. Target is rationally responding to a sorry state of legal affairs. Whether America Blog agrees with the reasoning or not, the Civil Rights Act does prohibit religious discrimination in employment, and what that really means is up for grabs. If you’re Target, these are your options:

1. Refuse to stock EC, lose the potential sales, and get accused by the left of kowtowing to the religious right.2. Stock EC, require your pharmacists to sell it, and run the risk of getting sued on grounds of religious discrimination by the pharmacists you fire for not selling it. Suffer huge legal expenses even if you win.3. Stock EC, but don’t require pharmacists to sell it. Hopefully, customers will wait for another pharmacist to come on duty.

Naturally, Target has taken door #3. And it’s pretty darn silly. It discriminates against customers randomly, based on whether the pharmacist on duty happens to be a religious nut. But the other options are no better. Target’s choice doesn’t reflect evil red-state politics – it represents an attempt to steer between the Scylla of leftwing excoriation and the Charybdis of frivolous lawsuits.

5 comments:

I'm no legal expert, but I expect it's legal to discriminate against quadraplegics in hiring fire fighters, because of the duties of the job. The duty of a pharmacist is to fill prescriptions and to instruct customers to use drugs as prescribed. Employers are entitled to discriminate on the basis of common sense.

Target should have the right to discriminate against customers, that is, not to sell to them, randomly or otherwise, as long as the discrimination isn't against a "protected minority." I don't believe that buyers of contraceptives have yet attained that status, though anything is possible given the state of the law these days. It is Target's business to run, after all. And if Target chooses to tick off a few customers in order to retain trained pharmacists, well, that should be Target's choice. Not anyone else's.

"murky thoughts" says: "The duty of a pharmacist is to fill prescriptions...." No, the duty of a pharmacist is to abide by his employer's lawful policies. That the pharmacists in question gladly accept Target's policy that they need not sell contraceptives is irrelevant. Target has a lawful policy (as far as I'm concerned) and the pharmacists are abiding by that policy.

Technically speaking, Murky Thoughts' example is governed by the Americans with Disabilities Act, rather than the Civil Rights Act, but the basic point that substantive performative criteria are generally held as exempt still applies. Staying within Target, the company would be free to require Jews and Muslims who work in the deli to slice ham for the customers, just as it could require Jewish and Muslim cashiers to ring up customers' copies of Passion of the Christ or The Satanic Verses, no matter how much either offends them.

Could a lawsuit be FILED? Sure, you can file anything you want. But there isn't much in the way of precedent to suggest THIS kind of suit would go anywhere.

MT and RJ - The standard you're advocating (employee must be willing and able to perform the job duties) is obviously the reasonable one. But that doesn't mean that a judge or jury wouldn't rule the other way. And in any case, as I said in the original post, Target could spend a lot of money defending itself from such a suit even if it were unsuccessful.